Supreme Court Declines to Settle BCRA Bickering

January 23, 2006 | The U.S. Supreme Court today declined to resolve a dispute between an anti-abortion group and the federal government over the constitutionality of federal law dictating how political advertisements can be broadcast before an election.

In a three-page unsigned order issued just six days after oral arguments, the court sent the case, Wisconsin Right to Life v. Federal Election Commission (No 04-1581), back to the three-judge district court. In doing so, the court signaled its willingness to examine the application of campaign-finance law it took up just two years ago—but at a future time, when a new face, possibly with a new view, has joined the court.

The case is the first time the court has dealt with campaign finance since it upheld 5-4 the Bipartisan Campaign Reform Act, also known as McCain-Feingold, in 2003. It was also the first campaign-finance case for Chief Justice John Roberts, and probably the last for retiring Justice Sandra Day O’Connor.

Wisconsin Right to Life had asked the court in oral arguments on Jan. 17 to declare BCRA unconstitutional as applied to broadcast advertisements that the anti-abortion group wanted to run during the final months of the 2004 campaign season. The FEC contended that the group’s ads would have violated the electioneering communication laws by appearing too close to an election.

Under federal law, unions and corporations can engage in broadcast electioneering ads during a campaign’s home stretch only if they buy the ads using money raised through political action committees. PAC money is raised through limited, individual contributions.

WRTL ran ads in 2004 urging voters to contact the state’s Democratic U.S. senators, Herb Kohl and Russ Feingold, and urge them not to filibuster President Bush’s judicial nominees. The ad began airing in late July of that year and continued through early August, right up until the electioneering restrictions would have kicked in. The group asserts that it should have been allowed to continue to run the ads without violating a rule set forth in BCRA that bans corporate-funded broadcast advertisements mentioning a federal candidate’s name from running 30 days before a primary or 60 days before a general election. Feingold, who helped author the 2002 law that commonly bears his name, was up for re-election that year.

The Wisconsin abortion opponents paid for their ads with money from the group’s general treasury because, the group said, it did not have enough money in its PAC. WRTL contends it is unconstitutional to apply the electioneering communication restrictions to the ads in question because the ads were an expression of the group’s views on an issue and did not endorse or attack a candidate. James Bopp, a lawyer for the Wisconsin group, told the court Jan. 17 that the ads made no plea to vote for against either senator. Current campaign-finance law cannot be applied to grassroots political speech not directed toward the outcome of an election, he said.

“The call to action was to (tell viewers to) call the senators and ask them not to filibuster,” Bopp said. “There’s an election, but also Congress is in session. The government is engaged in its lawmaking function” and citizens should not be barred from registering their opinions on legislation simply because an election is upcoming.

WRTL’s PAC had endorsed three other candidates opposing Feingold and announced that his defeat was a priority. As the election neared in August 2004, the group had sought a court order to prevent the FEC from blocking their ad; the three-judge court in Washington denied their motion based on McConnell v. FEC, the case under which the court upheld BCRA in 2003. According to the lower court, the McConnell decision had already decided that the law was constitutional. It also said that the WRTL faced no financial hardship and could use PAC money to pay for its ads. In its decision today, the Supreme Court reversed the lower court’s decision that WRTL could not challenge the laws application to its ads.

Looking at the question of whether the law could be applied to WRTL’s ads, the Supreme Court found the lower court’ opinion ambiguous when it said that the case’s facts “suggest that WRTL’s advertisements may fit the very type of activity McConnell found Congress had a compelling interest in regulating.”

Appearing Jan. 17 before the Supreme Court on behalf of the FEC, Solicitor General Paul Clement argued that the justices had already decided in McConnell that the electioneering communication provision was constitutional as applied to this type of ads. Clement said he saw no difference between them and “sham issue” ads meant to influence the outcome of an election by ostensibly focusing on issues. In the 60 days before an election, he said, it is often difficult to distinguish between ads that amount to electioneering and those that are genuine issue ads. Clement urged the court to uphold its 2003 ruling supporting BCRA.

Clement questioned the “odd timing” of the Wisconsin group’s ad broadcast, which fell on the fourth day of a 45-day Senate recess, he said. Justice Anthony Kennedy pointed out that members would have likely been back in their home districts by that point.

Justices David Souter and Stephen Breyer said the Wisconsin ad in question bore little difference from the ads discussed in the 2003 McConnell case, when the court upheld the electioneering communication provision. In that case, the court ruled that Congress was justified in requiring electioneering communications to be paid for with money raised under the limits and prohibitions of the law.

“There’s simply no way to know whether an ad like yours is a genuine issue ad or not,” Breyer told Bopp. Souter suggested the case be decided on the precedent set in McConnell, unless the court chooses to re-examine the landmark campaign-finance law.

“What is different in your case from those paradigm examples in McConnell?” Souter asked Bopp. “Your ad in this case is one of these that is difficult to deal with fairly. Congress decided how to deal with them; we said ‘OK.’ ”

Souter and Breyer were among the five justices who voted to uphold most of BCRA in 2003. Justices O’Connor, John Paul Stevens and Ruth Bader Ginsburg rounded out the majority then, and appeared to favor the FEC’s argument in the Wisconsin case. Chief Justice Roberts’ questioning Jan. 17 suggested he favored WRTL’s argument, as had his predecessor, Chief Justice William Rehnquist, and justices Kennedy, Clarence Thomas and Antonin Scalia.

By remanding the Wisconsin case to the lower court, the Supreme Court is avoiding resolving the issues until retiring justice O’Connor has been replaced.

Her likely successor, Appeals Court Judge Samuel Alito, may be seated in time to hear the second campaign-finance case to come before the court this session. The justices are scheduled to hear arguments Feb. 28 in Randall v. Sorrell (Nos. 04-1528, 04-1530 and 04-1697) and related cases consolidated with it. Those cases examine the constitutionality of Vermont’s limits on candidate spending and contributions in state elections. Vermont has the lowest contribution limits of any state, according to the case briefing.

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